ILLINOIS POLLUTION CONTROL BOARD
January
21,
1988
MCLEAN COUNTY DISPOSAL
COMPANY,
INC.,
Petitioner,
v.
)
PCB 87—133
COUNTY OF ~4CLEAN
Respondent.
DISSENTING OPINION
(by J.D.
Dumelle,
R.
Flemal and B.
Forcade):
The majority holds that
a county board lacks
the power
to
manage its docket.
In sum,
the majority holds that the reason a
county board lacks
the power
to manage its docket
is that the
Environmental Protection Act,
which mandates
the county board’s
serving
as
an administrative agency
in these cases,
has been
narrowly construed
in other contexts.
Concerned Boone Citizens
v.
~4.I.G. Investments,
Inc.,
144
Ill. App.
3d
334,
494 N.E.2d
180
2nd
Dist.
1986,
County of
Lake
v.
PCB, 120 Ill. App.
3d 89,
457
N.E.2d
1309
2nd
Dist.
1983
Petitioner originally submitted its application on January
22, 1987.
On February
19,
1987 the County Board’s Pollution
Control Site Hearing Committee notified Petitioner that the
application failed
to adhere
to county informational
requirements;
the committee discovered seventeen
(17) pro forma
deficiencies.
This notiFication of pro forma deficiencies was
not an evaluation of the substance of Petitioner’s application;
rather,
it simply addressed Petitioner’s failure to adhere
to the
County’s procedural
rules,
to wit:
1)
Failure to provide maps of other,
known water
wells within one and one—half miles
of the
proposed site
in violation of county procedural
rule Section 33.28(B);
2)
Failure
to provide adequate and accurate maps
related
to nearby land uses and homes located
within one and one—half miles of the site
in
violation of application filing county
procedural rule section
33.28;
3)
Failure
to provided complete plans and
specifications for building structures
in
violation
of county application filing
85—211
procedural rule Section
33.39.
The rejection
concerning this criteria stated that the
application was unclear whether approval was
also being sought for
a
recycling center and
incineration center;
therefore,
the county
required more information
to flesh out the
Petitioner’s Application.
4)
Failure
of traffic study maps,
road weight maps
and building maps to match the legal
descriptions
of the site and surrounding areas.
The four above—noted deficiencies are only four
(4)
of
the
seventeen
(17) deficiencies identified by the County Board’s
Pollution Control Site Hearing Committee
——
but these do serve to
highlight the fact that the application was incomplete when
initially tendered on January
22,
1987.
It should be noted that
the duly enacted county ordinance states no application for site
approval shall
be deemed
filed
until
all filing
and data
requirements are followed.
The county ordinance,
at section
33.04,
states
as follows:
“33.04.
No application
for site approval shall
be
deemed to have been filed
or accepted for filing
unless
all
of
the requirements of this resolution
applicable
thereto have been met and the county
clerk
shall not give
a receipt
or other indication
of
filing until such time as
it
is determined
that
the application complies with the requirements
of
this section....”
McLean County Revised Code,
Section
33.04.
Shortly after notification
of the deficiencies, Petitioner
submitted further data and documentation (apparently without
objection).
On March
17,
1987,
after Petitioner complied with
the county ordinance by tendering
all required information,
the
application was deemed
‘filed’
as
of that date.
Upon receipt of
a complete application package,
the application became
‘filed’,
hearings were held and
a final decision was rendered within the
180—day time limit established by law.
On August
18,
1987 the
full county board denied petitioner’s siting application for
substantive reasons.
In sum, the majority holds that because the appellate courts
have struck down certain county boards’
attempts
to im~osefiling
fees when
the Act did not explicitly provide
for such,
county
boards now lack the authority to impose any reasonable filing
procedures and requirements when the result of such may cause
a
1
It should be noted
that the Act has subsequently been
amended
to allow counties
to set filing
fees.
85—212
final decision
to be entered
in excess
of 180 days from the date
that the application
is initially tendered to the county board.
Apparently,
it does not matter
that the county board’s filing
requirements were obviously directed toward fulfilling
the
ultimate purpose of the act:
A full and fair hearing on the
merits.
Section 39.2(a)
of the Act establishes the criteria
to be
considered
at
a landfill siting hearing.
Subsequently,
it
provides
as follows:
“The siting approval, procedures,
criteria
and appeal procedures provided for
in this Act..,
shall
be the
exclusive.., procedures and
rules.”
In
1986,
the Second District
Appellate Court,
narrowly interpreting this Section, held as
follows regarding
the imposition of
a filing fee:
“Section
39.2
does
not
specifically
grant
power
to
assess
fees...
(and)
the
imposition
of
a
filing
fee
is
not
a
reasonable
and
necessary condition in order
to accomplish the
purpose
of
Section
39.2.”
Concerned
Boone
Citizens, supra”
While
it may
be true that the imposition of
filing fees
is
not closely enough
related
to the purpose
of the Act
to survive
a
narrow interpretation, surely
a filing requirement which seeks to
provide the county board with
the complete facts andrelevant
information
is sufficiently related.
Without saying more,
it
is obvious that the intent of the
General Assembly
in
directing county boards to sit
in review of
an application for siting
of landfills
is to achieve
a full and
fair adjudication on the merits of
the proposal.
This
is why
the
Act establishes the criteria by which an application
is
to
be
judged,
to wit:
Local safety, incompatibility with nearby areas,
impacts on local
traffic flows...
etc.
The county board passed an ordinance which required
applicants
for
a landfill to submit certain information with
its
application;
this included data relative
to nearby water wells,
neighboring land uses,
and
road weight maps,
in addition
to other
data.
County Ordinance Procedural Rule
Section 33.28.
These
data are required
in order
to
fully review the application in
accordance with
the criteria established
in the Act, and
to
establish the proposal’s safety, compatibility and impacts on the
area.
A county board may exercise powers which are necessarily
implied from those powers expressly granted by the legislature.
McDonald
v. County Board
of Kendall County,
146 Ill.
App.
3d
1651,
497 N.E.2d 509
2nd
Dist.
1986.
In this case the county
required data which would substantially aid it
in fulfilling
the
obligations
imposed by the Act.
The county board procedural
rules are proper, reasonable and directly related
to the very
purpose of the Act, which
is
a full and complete hearing on the
85—213
—4—
merits.
The majority apparently believes that the ultimate
purpose
of the Act is
that “final action” occur.
This,
apparently regardless of whether this final action
is
a summary
dismissal or
a full and complete hearing.
We disagree!
The next issue
is whether
a county board can reject an
application, where that application fails
to comply with its
procedural
rules.
The power
to reject a purported filing for
failure
to comply with the regulations has been decided:
There
is
a
sound
use,
and
indeed
requirement
of
an
Agency
“rejection”
of
a
party’s
filing..,
it
is appropriate
where
the
filing
is
so
deficient
on
its
face
that
the
Agency
may
properly
return
it
to
the
filing
party
without
even awaiting
a
responsive
filing
by
any
other
party...
Both,
when
the
governing
statute
explicitly provides
for rejection
and
when
it
does
not.”
Municipal
Light
Boards,
etc.,
Mass
v.
FPC,
450
f2d
1341,
D.C.
Cir.
1971.
In this case, although
the county board
is ordinarily
a
legislative body,
it
is acting pursuant
to
a statute which
mandates the County Board
to act
as an administrative body in
a
quasi—adjudicatory setting.
The analogy to administrative law
is
clearly appropriate.
The county board has the authority and indeed the
responsibility to reject Petitioner’s purported filing when that
filing fails
to comply with filing requirements,
and fails
to
contain
the data necessary to
allow the county board
to perform
its essential function.
The majority’s argument
is that
a county board may not
reject
a purported filing because doing so may result
in the
rendering of
a decision
in excess
of 180 days from the date
of
initial tender
to
the Board.
This
is indefensible.
The majority
has mistakenly focused on the
result
——
not the authority to do
the act.
An administrative agency clearly has the authority to
manage
its docket by rejecting clearly insufficient purported
filings.
Municipal Light,
supra.
The majority has focused on the fact that Section 39.2
states that
it shall be
the exclusive procedures and rules
in
local
landfill hearings.
Notwithstanding
the explicit language
of
the Act,
this cannot be because the Act does not contain
provisions which would enable
a hearing
to occur
or proceed.
The
Act fails
to contain provisions defining or creating hearing
officers,
the order
of proceedings,
the hours and location of
proceedings and who may or must testify.
All of
these are left
to
the county board
——
notwithstanding
the express provision of
85—214
the Act.
The Act does not establish
the amount of the filing fee
which
is now allowed,
or
the contents of the application
package
itself.
Similarly the Act fails
to describe the
organization of the county board,
its rules of order,
its
constituency, what constitutes
a quorum,
a valid vote, and what
evidentiary standards will be employed.
All
of these
are defined
by other provisions
of Illinois law or are left for
the county
boards
to determine
——
notwithstanding
the express provisions of
the Act.
Somehow,
the majority has no difficulty with county
boards adopting regulations relative
to
the above matters
——
but
the county board may not set forth
informational filing
requirements
if
the enforcement
of
such might cause
a decision
later
than 180 days from the date that the application was
initially tendered.
It should be noted
that this Board routinely and
unilaterally extends decision deadlines.
For
18 years this
Board,
has treated Amended Variance Petitions
as re—starting the
statutory time clock.
This,
even when the Amended Petition filed
was
in response
to this Board’s notice of insufficient filing
and
threat
of dismissal.
The process works as
follows:
A Petition For Variance is
filed on January
1st.
The Board must render
its decision within
120 days
——
else the variance
is deemed granted by operation of
law.
However,
if the Petition is deficient
fails
to
include
necessary data required by
35
Ill. Adm Code 104.121
this Board
will require the submission
of
an Amended Petition containing
the
required data.
If that Amended Petition
is filed on February
15th,
then this Board will render
a hearing within
120 days of
February 15th.
If this Amended Petition
is deemed insufficient,
the
120 time deadline will not be invoked until
a complete
Variance Petition
is presented.
The majority,
by blindly requiring
the county boards to
issue
a final decision within
180 days
of initial
tender, has
adopted
a
“do
as
I
say
——
not as
I
do” approach to the siting
of
local landfills.
The importance of
the above
analogy
is that
it demonstrates
the practicality and logic
of
reviewing an application
for
completeness before scheduling hearings on
a fatally defective
Petition.
The logic
is inescapable
——
yet the majority refuses
to recognize this as
it relates
to county board’s review of
applications for landfills.
Indeed
this Board’s regulations regarding permit
applications are almost identical to the county ordinance which
the majority says cannot be enforced
“An
application
shall
not
be
deemed
to
be
filed
until
the
applicant
has
submitted
all
85—215
information...
Required...
“
35
Ill.
Adm.
Code Section 201.158.
McLean County Revised Code Section 33.04
states as
follows:
“No
application..,
shall
be
deemed...
filed
unless
all...
requirements...
have
been
met
and
the county clerk
shall
not give
a receipt
or
other
indication
of
filing
until such time
as
it
is
determined
that
the
application
complies...
Although
it
is true that the Pollution Control Board may
adopt
its own substantive and procedural rul?s
——
it
is also true
that
a county board may adopt rules which are necessarily implied
and which
are directly related
to
its essential function.
This
Pollution Control Board adopts procedural
rules because
it
is
expressly authorized
to do
so.
County boards may adopt
rules
because the Act is incomplete and
a hearing could not be held
without the adoption
of supplemental rules.
County authority to
adopt proper
rules,
is necessarily implied.
The majority states that actions by a county committee do
not constitute final county action.
Without addressing
the issue
of the propriety of delegating ministerial
functions
to
a
committee
for
instance reviewing
an application
to ensure that
it complies with duly enacted county ordinances
——
this case
revolves not around the county committee,
but on the county
ordinance itself.
It was the county ordinance which required
complete information; and
it was
the county ordinance which held
that
no application was deemed filed until
it was complete.
Clearly,
it was final county action adopting the procedural
rules, which require complete applications.
The intent of
the General Assembly could not have been to
force
the county board and the Petitioner
to engage
in
a
meaningless and impotent administrative exercise, one whose
outcome
is predetermined by the unfortunate
and inadvertent
failure
to include certain required data in the application
package.
But this
is exactly what the majority requires by
demanding
that the county board hold
a special meeting and public
hearing simply
to summarily dismiss an application.
The purpose of
this Board
is the prevention of environmental
pollution and protection of
the public health.
Accordingly this
Board
is required, by statute,
to determine,
define and implement
environmental standards.
Ill Rev Stat.
1986
ch.
111 1/2 Section
1005(a).
The decision of the majority has preempted this
function.
By holding that Petitioner’s application
is deemed granted
by operation of law the majority has prevented this Board from
85—216
reviewing the merits of the proposed landfill.
As a result of
the majority’s decision, McLean County must now accept a landfill
which has not been demonstrated
to
be safe.
It has not been
shown to be safe to this Board
or
to the duly elected
representatives of
the people of
McLean County:
The McLean
County Board.
The majority attempts to mollify this indignity and danger
by noting that the Illinois Environmental Protection Agency
(IEPA)
is still
required to
review the proposal.
But this only
serves
to highlight the injustice that has been done.
The IEPA
will do what
it must necessarily do with every landfill proposal
that comes before
it:
It will review
the plans according
to out-
dated regulations
adopted
as
long ago as
1973
to ensure
engineering integrity congruent with those
regulations.
The
Illinois Environmental Protection Agency (IEPA)
is not charged
with the duty
to review the application and circumstances
to
ensure that
a landfill
is truly needed Section 39.2(a)(l).
The
IEPA does not review an application
to ensure that
a proposed
landfill site will minimize incompatibility with the surrounding
area Section 39.2(a)(3).
The IEPA does not review an application
to ensure that impact(s) upon nearby roadway uses and traffic
patterns will
be minimized Section 39.2(a)(6).
It
is the county
board that
is charged
with all these duties.
It
is also the
county board which
is charged with
the duty
to ensure that the
plan of operation will protect the facility and
the surrounding
area from fire,
spills
and other occupational accidents Section
39.2(a)(5).
The county board,
consisting of duly elected
representatives
of
the people of McLean County
is charged with
these and other duties pursuant
to Ill Rev Stat.
1986 ch.
111 1/2
Section 1039.2.
Likewise this technically qualified board
(the
Pollution Control Board)
is charged with the duty to review the
county board’s decisions according to the statutory criteria and
to ensure that these decisions are not contrary
to the manifest
weight of
the evidence.
Ill Rev Stat.
1986 ch.
11 1/2 Section
1040.1.
This statutory scheme has been preempted.
The majority’s decision wrongly sidesteps the statutorily
mandated scheme
and orders that
the permit be deemed granted by
operation of
law.
The unfortunate reason
for this unhappy result
is the County Board Site Hearing Committee,
in attempting
to aid
the Petitioner
in tendering
a completed package,
and acting
pursuant to
a duly enacted county ordinance,
notified Petitioner
an
incomplete application package was tendered.
It was then
fully explained
to Petitioner
which additional documents were
needed.
The majority’s decision simplisticly exalts form over
substance.
The very purpose
of this board
is
to review the
substance of permit applications,
the county board decision and
to ensure that the environment
is protected.
The majority’s
decision abrogates that duty.
85—217
—8—
It
is the majority’s position that
a special
county board
meeting
is
required to notify an applicant that
it has failed
to
follow duly enacted filing
requirements.
This,
notwithstanding
the Municipal Light opinion regarding proper rejection of
a
proffered filing.
For some unknown reason precious time and
county resources must be mustered
for
the county board
to engage
in
a meaningless exercise
to notify an applicant that pursuant to
an earlier enacted county ordinance it has failed
to
follow the
filing procedures.
Not only does
the majority’s view exalt form over substance,
but it also injects
a needless amount of acrimony and friction
into an already difficult situation.
Instead of attempting to
help an applicant by facilitating and ushering an applicant to
a
fair,
final adjudication, counties are being told that they
should refrain from helping an applicant so they can later ambush
the application at a special county board meeting for minor
procedural deficiencies.
It should be noted that after July 1,
1988,
applicants will be prohibited from refiling for two years
following
a rejection.
Not only
is the majority’s decision
improper but
it
is surely not the General Assembly’s intent.
It
is important
to note that both
sides were operating in
good faith.
The County Ordinance and the Petitioner were merely
trying
to usher
a completed application package
to the ultimate
decision—maker.
This they were successful in doing.
Obviously,
the legislature intended that there would be
such a considered
decision by an informed adjudicatory body.
Holding that the permit should now
issue by operation of
law
(for failure
of the County Board to render
a final decision
within 180 days
of January 22,
1987)
is incongruous with the
conduct of
the parties and would unfairly punish
the county and
the people
of McLean County for seeking
to aid applicants,
and
obtain
a full hearing on the merits.
It would be unreasonable
to
expect the county
to prepare
(and pay for)
an entire hearing
schedule upon receipt
of
a fatally defective application
package.
Surely the Act does not mandate
a full county hearing
process for every piece
of paper which merely identifies itself
as an application
——
yet this
is exactly what the majority would
require.
Conversely,
it would be improper for
a County Board
to
allow or encourage an applicant
to needlessly expend resources
when the application package
is
lacking important information and
cannot be granted.
For
the above—noted reasons,
we respectfully dissent.
85—218
—:)—
Jacob D. Dumelle
~Chairman
Ronald Flemal
Board Member
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Di senting Opinion was
submitted on the
~r~-
day of
_____________________,
1988.
Dorothy M. ~3unn,Clerk
Illinois Pollution Control Board
Board Member
85—219
